State v. Sarlls

• Court: Supreme Court of Indiana
• Citation: 34 N.E. 1129,135 Ind. 195
• Docket Number: 16,910
• Parties: The State v. Sarlls
• Decision Date: 17 October 1893

34 N.E. 1129

135 Ind. 195

The State v. Sarlls

16,910

Supreme Court of Indiana

October 17, 1893

From the Posey Circuit Court.

Judgment is reversed, with instructions to the circuit court to overrule the motion to quash the indictment.

A. G Smith, Attorney-General, J. W. Spencer and S. Leavenworth for the State.

W. S Jackson, for appellee.

OPINION

Dailey, J.

On the 29th day of November, 1892, the grand jury of Posey county returned into court an indictment charging the appellee, Roy Sarlls, with the embezzlement of $ 31 of the funds of William Ford and Braddock McGregor.

Appellee moved the court, orally, to quash the indictment, alleging, for cause, that said indictment, on its face, charged the defendant with embezzlement under section 1945, R. S. 1881; that said indictment contained no allegation that reasonable demand had been made of the appellee, by his client or employer, or persons designated by them to receive the same.

The appellant claimed, in substance, that the indictment, on its face, was a good and sufficient charge of embezzlement under section 1944, R. S. 1881; that it was drawn upon said section, and, therefore, no averment of demand was necessary. The court sustained appellee's motion to quash, to which ruling and judgment appellant, at the time, excepted and appealed to this court.

But one question arises for consideration under the assignment of error in this case. Did the court err in quashing the indictment? The charging language of the indictment is "that Roy Sarlls, on or about the 15th day of November, 1892, at said county, being then and there the employee, clerk, servant, and collector of William Ford and Braddock McGregor, for the collecting and keeping of the accounts of the electric light bills and accounts due and then and there belonging to said Ford & McGregor, did then and there receive and take into his possession from the moneys of said Ford & McGregor, to which the said Roy Sarlls then and there had the control and possession by virtue of his employment, and whilst so employed as aforesaid, the following property, to wit: [here the indictment describes the property taken as money, and states the denomination of each bill and piece of coin], to the possession of all and each of which the said William Ford and Braddock McGregor were then and there entitled, and did then and there feloniously and fraudulently take, purloin, secrete, and appropriate to his own use, the moneys aforesaid," etc.

The appellee, in support of the rulings of the court below, contends that the indictment is bad for three reasons:

"1st. For uncertainty.

"2d. Because it shows upon its face that it was returned under section 1945, R. S. 1881, which defines embezzlement by attorneys at law and collectors.

"3d. That showing on its face that the offense charged was against the provisions of section 1945, R. S. 1881, the indictment was bad for not alleging that a demand had been made as required by that section."

In 2 Bishop's Criminal Law, section 332, we have the following clear doctrine upon the interpretation of terms: "The most frequent terms to indicate the person embezzling, are 'agent,' 'servant' and 'clerk.' We saw, in 'Statutory Crimes,' that according to an old doctrine, now exploded in England, and not uniformly followed in this country, where a statute enumerated several things, in words so broad in meaning as to overlie one another, the less specific are narrowed in the interpretation to prevent this overlying. [1st Stat. Crimes, section 247.] Now, the words of our principal statutes are 'agent, servant, clerk,' and if the exploded doctrine were to be applied to them, the person offending could be deemed to belong to only one of these three classes, not to two or to all, and the pleader must select, at his peril, one, and only one, which the court should charge him as being. But the author is not aware that any attempt has been made to apply this doctrine to these statutes; consequently, if the pleader is satisfied the defendant is either an 'agent,' a 'clerk,' or a 'servant,' he selects the term which pleases him best; then, should the proofs sustain the allegation in this respect, all is well, though it should appear that one of the other statutory terms would be equally appropriate."

It is a rule of construction, in this State, that when a statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punished alike, the whole may be charged conjunctively in a single count. The indictment, excepting the word "collector," does not use a single term or expression of section 1945, nor does the word "collector" appear in the body of that statute, its only use being in the title. The language of that section is, "any attorney at law or person engaged in making collections for others," etc.

If a person engaged in making collections for others is a collector, by an equally fair interpretation a "clerk," a "servant," an "employe," or "keeper of accounts," so engaged, may be collectors; and a collector may be a servant, clerk, employe, and keeper of accounts.

Section 1945, supra, by its terms, clearly aims at that class of persons or collectors who, as a profession for fee or percentage, collect generally for the public. It recognizes their right to mix the money thus collected with their own or other funds, by making...